As South Africa celebrates its 25th heritage month, it’s worth reflecting on a less savoury aspect of our democratic heritage – corruption. While the Zondo commission and other recent inquiries have awakened the public to the depth and breadth of state capture during the Jacob Zuma era, there is an older, equally labyrinthine and besmirching case of corruption that involves the former president, one that was whitewashed by a commission of inquiry that he appointed to investigate it.

The arms deal, as it has become popularly named, saw the first administration of democratic South Africa sell its ethics and principles in exchange for unnecessary armaments, large-scale promised investment and, in many cases, the personal enrichment of politicians and middlemen involved in its negotiation.

Over the past two decades, the details of the corruption involved and the people who personally benefitted from the deal have been widely reported and written about. But the scandal slowly seemed to disappear from public consciousness, particularly during the majority of the years of the Zuma era.

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That was until 2011, when, in response to a prosecution brought against the government by arms deal activist Terry Crawford-Browne, the former president established a commission of inquiry led by former Judge Willie Seriti to investigate all matters related to the deal.

The commission sat from 2013 and delivered its final report in late 2015. As is so often the case with commissions of inquiry – a form of executive power most associated with countries in the former Commonwealth – the Seriti report found that: “The evidence presented before this commission does not suggest that any undue or improper influence played any role in the selection of the preferred bidders who ultimately entered into contracts with the government.” No one had done anything untoward and nobody should be prosecuted.

‘Second agenda’

While the findings of a commission of inquiry are not legally binding because a commission is not and does not function in the same way as a court of law, the upshot of Seriti’s report, which Zuma gleefully presented to the public in April 2016, was that it paved the way for those who had been implicated to point to its findings as a form of exoneration in the face of any further possible prosecution.

For several critics of the arms deal – such as former ANC member of Parliament and Corruption Watch UK chief executive Andrew Feinstein, author Paul Holden and investigative non-profit organisation Open Secrets director Hennie van Vuuren – the commission initially seemed to provide an opportunity, finally, to get answers to questions about the procurement process.

As Van Vuuren recalls, “I and others entered the process believing in the bona fides of Judge Seriti. He is a Supreme Court justice and not somebody who had handed down questionable judgments and had sat through JC [Judicial Commission] interviews, etc, etc. So we had faith in the process and we never walked into it thinking it was going to have a predetermined outcome – that would have been a very cynical approach.”

However, it soon became apparent to these critics and other non-governmental organisations (NGOs) watching the process that the commission was stacking the deck in favour of implicated witnesses. It was intent on treating critics as hostile witnesses while refusing to allow important documentation to be used in cross-examinations. This impression was further solidified by the resignation of two commissioners and two senior researchers, who all cited concerns about a “second agenda” being pursued by Seriti.

Room to challenge

By the time Feinstein, Holden and Van Vuuren were due to present evidence in 2015, the three had had enough of the bureaucratic wrangling to which the commission’s evidence leaders were subjecting them and, buoyed by a call from a broad range of NGOs for the process to be disbanded, they withdrew from the process.

When the commission’s report was released, it was clear that it had blatantly and not very subtly provided the president with the whitewash he wanted. As Holden points out, “There is a way to cover up these issues in a very sophisticated way that would make it difficult to challenge. But when we saw what the commission put out, we were like, okay, this is an open goal. Once we realised just how stupid and ill-considered the cover-up through the final report actually was, then we decided, okay, this is something we can challenge.”

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That challenge began in 2016. It included a People’s Tribunal on Economic Crime held by Open Secrets and other NGOs last year in which retired Constitutional Court Judge Zak Yacoob and other senior figures from the judiciary allowed the evidence not heard by Seriti to be aired publicly. They found that the procurement process had been marred by large-scale and heavily evidenced corruption.

After three years of legal back and forth between lawyers representing several groups, including Corruption Watch, Open Secrets and Right2Know, Judge President Dalston Mlambo together with fellow Judge Presidents Dennis Davis and Monica Leeuwen delivered their judgment in August. While Mlambo was only required to give a default judgment based on papers he understood, what he did had momentous implications: calling for a full bench, allowing for arguments, and delivering and reading the full judgment into the record.

As Holden sees it, “Mlambo knew that this was going to be a very potent political moment in which something quite profound was going to happen, both in terms of jurisprudence but also in terms of its immediate political impact, and I think that was very wise because it basically brought a very contested application into the public light and then also made the public very aware of it.”

Short shrift

While Mlambo’s judgment makes no assessment of the guilt or innocence of those implicated in the deal, it is cutting about and makes short shrift of Seriti and his commission. Mlambo and his fellow judges lambasted the commission for its failure to interrogate implicated witnesses in any substantial way and its wilful ignorance of important documentation that implicated many of those questioned. The judgment states: “It cannot be the modus operandiof an independent commission, determined to discharge its mandate, to ask peripheral questions to implicated witnesses and thus fail to test the veracity of the evidence in terms of documents, reports and records which were readily available to it.”

Although Seriti did not oppose the application brought against his findings, he maintains that he would not do anything differently in spite of the final finding of the judgment that: “Where the uncontested evidence reveals so manifest a set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry, the principle of legality dictates only one conclusion, that the findings of such a commission must be set aside.”

‘High-water mark’

Mlambo’s judgment is fundamentally important and game-changing for a number of reasons. As Van Vuuren observes, it sets “a new high-water mark as to what is required of a commission of inquiry on the one hand and, secondly, I see this as hugely affirming of the integrity of the judiciary.”

It also means that rather than rerun the process, the National Prosecuting Authority can now use evidence and documents presented to the commission to build cases for possible prosecutions, a path that National Director of Public Prosecutions Shamila Batohi recently indicated the authority is investigating.

For Holden, the reversal of the commission’s findings “basically means that arms deal prosecutions are back on the table and, long term, what that means is that there’s the possibility of instituting fines against the arms deal companies and taking other action to get some of the money back”.

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There could also be ramifications for the Zuma Thales corruption case, in which lawyers for the former president and the French arms company have both pointed to the findings of the commission as exonerating them in all arms deal-related matters.

Van Vuuren says Mlambo’s judgment sends a signal to those who thought that they could use the state to bury the deal. “Many of those former politicians are running quite scared as a result of the outcome of this process, because they thought the thing was stitched up and was buried. [The finding has shown] that the rule of law under democracy means that they can’t just control those processes.”

Ultimately, the arms deal is estimated to have cost South Africans up to R70 billion, with hundreds of millions flowing directly into the pockets of corrupt players. The Seriti commission cost the taxpayer a further R137 million and, while these amounts may pale in comparison to some of the figures emerging in the current revelations around recent state capture, Mlambo’s decision is a sign of the independence of the judiciary.

It should remind us that, as Van Vuuren observes about the findings of the People’s Tribunal, “it was because we didn’t deal with the crimes of apartheid that we had the arms deal. And it was because we didn’t deal with the arms deal that we walked into the hands of the contemporary state capture crew. I think that position is completely the correct one because we have to understand how they are all linked. These aren’t just ‘other scandals’, these are deeply intertwined.”